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2009 DIGILAW 453 (MP)

Niranjan Singh v. State of M. P.

2009-04-08

SANJAY YADAV

body2009
ORDER 1. Show cause notice dated 10.9.2007, purportedly issued under section 133 of the Code of Criminal Procedure, 1973, by the Sub-Divisional Magistrate, Chhindwara, is being questioned in the present writ petition filed under Article 226/227 of the Constitution of India. 2. The initiation of a proceedings under section 133 of the Code emanates on the basis of a complaint lodged by the respondent No.5 on 11.6.2007 at Police Station Kotwali, Chhindwara. The complaint was that a kuchcha house belonging to him and situated along the side of road (House No.24, 25 and 26, Lalbagh College Road, Chhindwara) being in dilapidated condition, is dangerous to the life and property in the surroundings. The istgasa was taken cognizance of, and the police registered a case and after allegedly conducting the enquiry, placed the matter before the Sub-Divisional Magistrate; whereof, after registering the case, notices were issued to the concerned persons including the petitioner who submitted their objections dated 27.7.2007 (Annexure P-3), wherein, the contention in nutshell was that, the house in question was not in dilapidated condition and it was only because the suit pertaining to the title of the house in question was pending in the Court of competent jurisdiction between petitioner and the respondent No.5 and it was with a view to frustrate the proceeding that recourse to section 133 of the Code was resorted to. The Sub-Divisional Magistrate, after considering the reply by the petitioner-objector and after taking into consideration the report by police and the letter dated 16.9.2005 by the Chief Municipal Officer, formulated a prima facie opinion, and issued the impugned show cause notice which is being challenged in the writ petition. 3. Petitioner challenges the show cause notice on the following grounds : (i) The exercise of powers under section 133 for removal of house is arbitrary and violates Article 14 of the Constitution. (ii) The house in question being a pucca house can in no term be treated as in a dilapidated condition as would cause any nuisance. (iii) The intention of a proceeding under section 133 being at the instance of respondent No.5, against whom a civil suit regarding the house in question having been filed, is an abuse of process of law and the petitioner cannot be deprived of the property without due process of law. (iii) The intention of a proceeding under section 133 being at the instance of respondent No.5, against whom a civil suit regarding the house in question having been filed, is an abuse of process of law and the petitioner cannot be deprived of the property without due process of law. (iv) The Sub-Divisional Magistrate erred in relying upon the report of police and the Chief Municipal Officer and without forming its independent opinion by getting the house examined through an engineer. 4. The respondent on their turn supports the action. While respondents No.1 to 4 contends that, the impugned notice only reflects a prima facie opinion formulated by the Sub-Divisional Magistrate on the basis of report of police, the Chief Municipal Officer and the reply furnished by the petitioner and a final decision is yet to be taken and therefore the challenge, it is urged is premature and liable to be dismissed. 5. The respondent No.5 while raising an objection as to maintainability of the petition on the ground that, the impugned show cause notice was subject to a challenge in a Criminal Revision No. 186/07 before the District and Sessions Judge, Chhindwara, and was dismissed by order dated 12.9.2007. This fact, it is urged, has been deliberately concealed by the petitioner and a stay was obtained. The respondent No.5 further contends that, in respect of the property in question, a civil suit has been preferred by the petitioner; wherein, the interim injunction was declined and therefore there exist no bar in proceeding under section 133, when the occasion so arise. It is further contended that the house being an old kuchcha house, is in a dilapidated condition and deserves to pull down to save surrounding life and property. It has also been averred in reply that the petitioners were never in occupation of the house in question and it was only when their application under order 39 rule 1 and 2 of CPC was rejected on 4.1.2006, that they forcefully occupied the house by breaking the lock, the report wherefor has been lodged with the police on 22.2.2006. It is on these grounds, it is urged that, the action taken by the Sub-Divisional Magistrate is just and proper. 6. It is on these grounds, it is urged that, the action taken by the Sub-Divisional Magistrate is just and proper. 6. The respondent No.6 in its reply while relying upon the note sheets regarding reasons therein for issuing the letter informing the Sub-Divisional Magistrate that the house in question, is in dilapidated condition, joins other respondents seeking dismissal of the petition. 7. Considered the rival submissions and perused the pleadings. 8. True it is that the petitioner while filing the petition did not disclose the fact that against the impugned order dated 10.9.2007, he filed a criminal revision before District and Sessions Judge, Chhindwara, forming subject-matter of Criminal Revision No.186 of 2007 and the same was dismissed on 12.9.2007 and the present writ petition was filed on 8.10.2007, it was therefore incumbent upon the petitioner to have disclosed the fact regarding the dismissal of criminal revision. Instead, the petitioner has attempted to explain and justify the non-disclosure through its reply to an application for vacating the stay in following terms : "In reply to the aforesaid, the petitioners humbly submitted that they signed the documents for purposes of seeking stay of the order dated 10.9.2007 (Annexure P-4) thereafter their counsel informed them that stay would be granted only after the final order is passed by the SDM; that the petitioners did not know about either the pendency of the criminal revision or the aforesaid order dated 12.9.2007 (Annexure R-5/6) whereby the criminal revision was dismissed; that it was only after the counsel in the instant case enquired about the same that the petitioners came to know that the criminal revision had been filed and dismissed; in these circumstance, the same was not brought to the notice of the counsel in the instant case and in turn to the notice of this Hon'ble Court." 9. Though the petitioner is apologetic for non-disclosure of the fact of dismissal of criminal revision being a bona fide mistake. The explanation seems to be an afterthought. The petitioners who are so vigilant about their right that they filed a suit and raised detail objection before the Sub-Divisional Magistrate cannot be said to be ignorant about the fact of filing of criminal revision through a counsel and its final outcome. The explanation seems to be an afterthought. The petitioners who are so vigilant about their right that they filed a suit and raised detail objection before the Sub-Divisional Magistrate cannot be said to be ignorant about the fact of filing of criminal revision through a counsel and its final outcome. However, since petitioners have tendered an unconditional apology and keeping in mind the fact that the order in criminal revision was not on merit, but was dismissed, because it was against an interim order/show cause notice, the present petition is not dismissed on the ground of concealment of fact. The preliminary objection raised by the respondent No.5 is therefore overruled. 10. Section 133 of the Code makes a provision regarding order for removal of nuisance : "133. Conditional order for removal of nuisance. The preliminary objection raised by the respondent No.5 is therefore overruled. 10. Section 133 of the Code makes a provision regarding order for removal of nuisance : "133. Conditional order for removal of nuisance. -- (1) Where a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any), as he thinks fit, considers : (a) That any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c) that for construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) that any dangerous animal should be destroyed confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order -- (i) to remove such obstruction or nuisance; or (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trader or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or (v) to fence such tank, well or excavation; or (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; . or, if he objects so to do, it appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any civil Court. Explanation : A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or re-creative purposes." 11. Thus, if a Sub-Divisional Magistrate considers that any building, tent or structure, or any tree is in such a condition that it is likely to fall, and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair on support of such building, tent or structure or removal is necessary, to remove, repairs on support such building. Thus, before arriving at a conclusion a judicial discretion is to be exercised by the Sub-Divisional Magistrate. 12. In Vasant Manga Nikumba and others v. Baburao Bhikanna Naidu (deceased) by LRs and others [1995 Supp.(4) SCC 54], their lordships were please to observed in paragraphs 4 and 5 : "4. A reading of section 133 would clearly indicate that the Executive Magistrate has been empowered, on receiving a report of the police officer or other information and on taking such evidence as he thinks fit that any building, tent or structure is in such a condition that, due to failure to remove disrepair, or without support it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and that in consequence he is empowered to specify the time to remove, repair or provide support to such building, tent or structure or tree. Two options are open to the Executive Magistrate on considering whether structure, building, etc. is in such a dilapidated condition which requires to be demolished immediately which brooks no delay to avert danger to the life and property of the neighbourhood or passers by unless they could be suitably repaired or supported so as to avert danger to the public or have it removed, etc. The condition precedent to exercise the power under section 133 is the imminent danger to the property and consequential nuisance to the public. The condition precedent to exercise the power under section 133 is the imminent danger to the property and consequential nuisance to the public. The removal of the building is so urgently required as it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood or passers by. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse, etc. The dangerous condition of the building is in presenti but not in future. The section is limited to injuries likely to be caused to the passers by or persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case. 5. In T.K.S.M. Katyanasundaram v. Kalyani Ammal, the Madras High Court held that the alleged nuisance would have been in existence for a long period. The circumstance and the evidence in that case did not prove that an urgency existed warranting the taking of action under section 133. No action can be taken under this section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil Court. It was also held that section 133 is attracted only in cases of emergency and immediate danger to the health or physical comfort of the community. Accordingly on the facts in that case, it was held that there was no immediate danger or emergency for the removal of the structure offending in that case. It is also settled law that recourse to section 133 could not be a substitute for the civil proceedings and the parties should have recourse to the civil remedy available and should not be encouraged to taking recourse to the provisions of section 133 of the Code." 13. In the case at hand, it is observed that the Sub-Divisional Magistrate has proceeded to form an opinion without examining any engineer nor any opinion has been taken from the experts to ascertain the structural condition of the house in question. The opinion seems to have been formulated on the basis of the police report and the letter of Chief Municipal Officer, which in turn nowhere discloses any reference to the opinion of the experts/engineer about the actual condition of the house. The opinion seems to have been formulated on the basis of the police report and the letter of Chief Municipal Officer, which in turn nowhere discloses any reference to the opinion of the experts/engineer about the actual condition of the house. In view of this, the formulation of an opinion by the Sub-Divisional Magistrate is not proper. The Sub-Divisional Magistrate is therefore directed, to seek an opinion from the engineer not below the rank of Superintending Engineer, Public Works Department, and after an opinion is received, shall forward a copy to the petitioners and give them an opportunity of hearing before passing any final order. Let the said exercise be done within a period of three months from the date of communication of this order. 14. The petition is allowed the extent above. No costs.